State v. Rice

Decision Date14 July 1972
Docket NumberNos. 38157,38188,s. 38157
PartiesSTATE of Nebraska, Appellee, v. David L. RICE, Appellant. STATE of Nebraska, Appellee, v. Edward POINDEXTER, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. An affidavit for search warrant is sufficient to meet the standards of the Fourth Amendment to the Constitution of the United States if it complies with the ruling in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.

2. The suppression of the product of a Fourth Amendment violation can be successfully urged only by the one whose rights were violated by the search itself, not by one who is aggrieved solely by the introduction of damaging evidence.

3. The Fourth Amendment does not clearly delineate between searches which are legal and those which are illegal; it only prohibits the unreasonable, with each particular case being decided on its own circumstances.

4. Seizing from the clothing of a lawfully arrested person evidence that is intimately connected with the crime for which he is arrested is not unreasonable under the Fourth Amendment.

5. The information supplied to a judicial officer issuing an arrest warrant on a sworn complaint may be supplemented by additional information which the arresting officers themselves have or have acquired before the arrest and which is corroborative of the complicity of the arrestee in the crime.

6. If the intent of the aider is different from that of the perpetrator, the aider's guilt is measured by the intent that actuated him.

7. Threats and expressions of ill will are in intentional homicide admissible to show intent, malice, or motive. Malice and motive are relevant and material not merely as evidence of intent, but also on the issue of guilt or innocence as tending to point to the identity of the perpetrator or perpetrators.

8. In a prosecution for intentional homicide committed against one of a class, threats by the defendant against the class are admissible.

9. Two or more defendants may be tried together where each of the defendants is charged with accountability for the offense or offenses or where the offense is part of a common scheme or plan or conspiracy.

10. Defendants challenging a joint trial must affirmatively demonstrate that the joint trial has prejudiced their individual rights.

11. Irrelevant and immaterial evidence erroneously admitted is not necessarily prejudicial.

12. Related instructions must be read and construed as a whole and if when so read and construed they correctly state the law there is no error.

13. Questions of credibility are ordinarily for the jury to determine and not the court.

J. Patrick Green, David L. Herzog, Omaha, for appellant Rice.

Frank B. Morrison, Thomas M. Kenney, Bennett G. Hornstein, Omaha, for appellant Poindexter.

Clarence A. H. Meyer, Atty. Gen., Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The defendants, David L. Rice and Edward Poindexter, in a joint trial, were convicted by a jury of murder in the first degree in the bombing death on August 17, 1970, of an Omaha police officer, Larry D. Minard, Sr., and the jury fixed the penalty at life imprisonment.

On this appeal assignments of error relate to the following: (1) Denial by the trial court of motions of both defendants to suppress evidence seized in a search at 2816 Parker Street in Omaha on August 22, 1970; (2) denial by the trial court of motions by both defendants to suppress the results of scientific analysis of clothing taken from each of them following their arrests; (3) instructions to the jury; and (4) overruling by the trial court of objections to admission in evidence of seven certain purported newsletters of the United Front Against Fascism and National Committee to Combat Fascism, local militant black organizations, and denial of related motions to strike and for mistrial. Errors also were alleged in connection with instructions related to said exhibits. In a separate pro se brief Poindexter makes an assignment of error that the evidence is insufficient to sustain the verdict.

We will note each of the assignments of error in order in separate parts of this opinion and make such reference to the evidence and other matters as may from time to time be required in consideration of the assignments. We first, however, briefly set forth some of the necessary factual information concerning the death of Officer Minard.

In the early morning hours of August 17, 1970, the police department of the city of Omaha received a telephone call purportedly originating from 2865 Ohio Street, which call represented that cries of a girl or woman screaming for help were coming from a vacant house next door at 2867 Ohio Street. The police dispatcher relayed the information by radio and several patrol cars responded to the call, including that of Officer Minard. Certain officers, including Minard, entered the house at 2867 Ohio Street and in so doing noticed and stepped over a suitcase lying on its side near the doorway. While a search was being conducted an explosion occurred, killing Minard who was standing near the suitcase and apparently inspecting it visually or otherwise. Other officers were injured by the explosion. Scientific analysis of the debris of the explosion established that the source was dynamite contained within the suitcase. Other evidence supported the conclusion that the suitcase contained a dynamite bomb which had been booby trapped and set to explode when moved. Subsequent intensive investigation by the police department led to the apprehension of Duane Peak, age 15, the acknowledged deliverer and planter of the booby trapped suitcase and maker of the false telephone report of the cries for help at 2867 Ohio Street. Peak testified for the State and the defendants were convicted as the instigators of the crime.

I.

On August 22, 1970, police officers procured a search warrant authorizing the search of 2816 Parker Street, the residence of David L. Rice, and the seizure of: 'Dynamite and devices which could be used to construct devices which could cause injury to persons and damage to property.' The search was conducted and as a result the following items of property, some of which were introduced into evidence at the trial were seized: '14 Sticks Dupont Red Cross Extra Strength Dynamite, 40 and 50%. 3 DuPont Elect. Blasting Caps., MS 25, 1 DuPont Elect. Blasting Cap. 3 pcs assorted wire. 1 Marathon #499 RR 6 Volt Battery. 1 pr Homecraft wire dykes. 1 CeeTee Co. Pliers. 1 long nose dyke, made in Japan, orange grips. 2 3/8 XIX 3/4 inch permanat magnets.' It was the foregoing evidence at which the motions to suppress were directed. Prior to trial a hearing was held on the motions to suppress, evidence was adduced by all parties, and the trial court denied the motions.

The defendants assert that the search and seizure was in violation of the provisions of the Fourth Amendment to the Constitution of the United States which provides: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

The defendants assert that the affidavit upon which the search warrant was issued was invalid in that it does not meet the standards laid down by the Supreme Court of the United States in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. They further contend that evidence seized in the search should have been excluded under the doctrines of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933; and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The affidavit was prepared by one of the officers in charge of the search while 2816 Parker Street was under surveillance by other officers. It was done under the intensive pressure of the extensive investigation following the bombing and during a time when the officers were working 18 hours day after day.

The affidavit is as follows: 'The complaint and affidavit of Sgt. R. Pfeffer and Sgt. Jack Swanson, on this 22 day of August 1970, who being first duly sworn, upon oath says:

'That he has just and reasonable grounds to believe, and does believe that there is concealed or kept as hereinafter described, the following property, to-wit: Dynamite and devices which could be used to construct devices which could cause injury to persons and damage to property. Also illegal weapons which he stated should be used against Police Officers. . . .

'That said property is concealed or kept in, on, or about the following described place or person, to-wit: A one story white frame house on Parker Street at 2816, In Omaha Douglas County, Nebraska.

'That said property is under the control or custody of David Lewis RICE, Minister of Information, National Committee to Combat Fascism.

'That the following are the grounds for issuance of a search warrant for said property and the reasons for his belief, to-wit: David Rice is a known member of the National Committee to Combat Fascism, which advocates the violent killing of Police Officers. A violent killing of a Police Officer occurred, in Omaha and arrests were made from the membership of the NCCF. We have been told in the past that RICE keeps explosives, at his residence, and also illegal weapons, which he has said should be used against Police Officers.

'A warrant authorizing a night-time search is requested because Nighttime when information was secured, and the property may be removed.

'WHEREFORE, he prays that a search warrant may issue according to law.'

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